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TMI Blog2024 (10) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... either by the Director or any other officer not below the rank of Deputy Director authorized by the Director for the purpose of this Section while giving reasons to believe on the basis of material in his possession. Once the sufficient provisions have been made in the 2002 Act to ensure availability of the adequate remedies, it would not be appropriate for this Court to entertain the petition even before the statutory 30 days period from the date when PAO has been passed. It is only in the rare and exceptional cases, the Constitutional Court would entertain the petition before the expiry of the period of 30 days. This Court disposes of the writ petition relegating the petitioner to avail its alternative remedy. Needless to observe that this Court has not made any observation on the merits of the case and the Adjudicating Authority will make efforts to expedite the matter. Petition disposed off. - HON BLE MR. JUSTICE SHEEL NAGU, CHIEF JUSTICE. AND HON'BLE MR. JUSTICE ANIL KSHETARPAL. Present: For the Petitioner(s): Mr. Anand Chibber, Senior Advocate Mr. Puneet Bali, Senior Advocate (Through Video Conferencing), Mr. Atul Nanda, Senior Advocate with Ms. Rameeza Hakeem, Mr. Ama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt. Ordinarily, exhaustion of statutory alternative remedies is the rule and not exception. In State of Himachal Pradesh and Others v. Gujarat Ambuja Cements Limited and Another (2005) 6 SCC 499, the Supreme Court carved out the following three exceptions while examining the enforceability of prerogative writ:- I) If the order is without jurisdiction or when the proceedings are taken before the forum under the provision of law which is ultra vires. II) If the order passed is made in violation of the principles of natural justice. III) If the order is abuse of the process of law. 3.3 Reliance placed by the learned counsel on Radha Krishan Industries s case (supra) is misplaced because it was found that the only remedy that was available was in the form of invocation of the writ jurisdiction as the order passed by the Joint Commissioner as a delegate of the Commissioner was not subject to an appeal. Similarly, in Godrej Sara Lee Limited s case (supra), the jurisdiction of the Deputy Excise and Taxation Commissioner (ST)-cum-Revisional Authority was questioned by the assessee. In that context, the Supreme Court held that the High Court was not correct in relegating to the alternativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... X XXXX XXXX 61. The third proviso in Section 5 (1) of the 2002 Act is another safeguard introduced vide Act 13 of 2018 about the manner in which period of one hundred and eighty days need to be reckoned thereby providing for fixed tenure of the provisional attachment order. Before the expiry of the statutory period relating to the provisional attachment order, the Director or any other officer not below the rank of Deputy Director immediately after attachment under sub-section (1) is obliged to forward a copy of the provisional attachment order to the threemember Adjudicating Authority (appointed under Section 6 (1) of the 2002 Act, headed by, amongst other, person qualified for appointment as District Judge), in a sealed envelope under Section 5 (2), which is required to be retained by the Adjudicating Authority for the period as prescribed under the rules framed in that regard. This ensures the fairness in the action as also accountability of the Authority passing provisional attachment order. Further, in terms of Section 5 (3), the provisional attachment order ceases to operate on the date of an order passed by the Adjudicating Authority under Section 8 (3) or the expiry of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lieve that any person has committed an offence under Section 3 or is in possession of the proceeds of crime , the Adjudicating Authority may serve a show cause notice of not less than 30 days on such person calling upon him to indicate the sources of his income, earning or assets or by means of which he has acquired the property attached under Section 5 (1) of the 2002 Act. viii) The above SCN would require the noticee to produce evidence on which he relies and other relevant information and particulars to show cause why all or any of the property should not be declared to be the properties involved in money-laundering and confiscated by the Central Government . ix) Section 8(2) requires the Adjudicating Authority to consider the reply to the SCN issued under Section 8(1) of the 2002 Act. The Section further provides to hear the aggrieved person as well as the officer issuing the order of provisional attachment and also take into account all relevant materials placed on record before the Adjudicating Authority . After following the above procedure, the Adjudicating Authority will record its finding whether all the properties referred to in the SCN are involved in money-laundering o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iderable loss despite taking all reasonable precautions. xvi) The order passed by the Adjudicating Authority is also subject to appeal before the Appellate Tribunal which is constituted under Section 25 of the 2002 Act. Thus, the Adjudicating Authority is not the final authority under the 2002 Act as far as the attachment of proceeds of crime or property involved in money-laundering is concerned. xvii) Any person aggrieved of an order confirming the provisional attachment order can file an appeal before the Appellate Tribunal under Section 26 (1) of the 2002 Act. The Appellate Tribunal on receipt of an appeal after giving the parties an opportunity of being heard will pass an order as it thinks fit either confirming or modifying or setting aside the provisional attachment order appealed against. xviii) Further, the order passed by the Appellate Tribunal is further appealable before the High Court under Section 42 of the 2002 Act on any question of fact or question of law arising out of the order passed by the Appellate Tribunal. It is, thus, clear that the provision in the form of Section 5 provides for a balancing arrangement to secure the interest of the person as well as to ensu ..... 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